American Express Company, American Express Travel Related Services Company, Inc., and American Express Centurion Bank (collectively, “Amex”) appeal from Judge Pauley’s denial of a motion to compel arbitration. Appellees Robert Ross and Randal Wachsmuth move to dismiss on the ground that we lack jurisdiction under Section 16 of the Federal Arbitration Act (“FAA”). For the reasons stated below, we deny the motion.
We assume familiarity with the opinion below. See Ross v. American Express Co.,
More than twenty class action complaints have been filed against VISA and MasterCard — the two largest credit card networks — and their member banks (collectively, the “MDL Defendants”), alleging violations of the Sherman Act arising from an alleged conspiracy to fix fees for conversion of foreign currencies. See In re Currency Conversion Fee Antitrust Litig.,
Subsequent to consolidation, the district court granted, in part, a motion by the MDL Defendants to compel arbitration. To the extent relevant here, the court held that: (i) cardholders whose cardholder agreements contained arbitration clauses as of the date on which they became putative class members were subject to arbitration; (ii) those cardholders were also required to arbitrate their claims against non-signatory banks under the doctrine of equitable estoppel; and (iii) the cardholders’ claimed defense against arbitration— that the arbitration agreements were unenforceable as the result of an illegal conspiracy — could not defeat a motion to compel arbitration where the complaint had not alleged an antitrust claim based on that defense. See In re Currency Conversion Fee Antitrust Litig.,
In April 2005, appellants moved, pursuant to 9 U.S.C. §§ 3 and 4, to dismiss the complaint and compel arbitration or, in the alternative, stay the proceedings pending arbitration. Appellants acknowledged that they were not a signatory to any express arbitration agreement with the appellees. Nevertheless, they argued that the arbitration clauses contained in the cardholder agreements with the MDL Defendants bound appellees to arbitrate their dispute with appellants in accordance with those clauses under principles of equitable estop-pel.
The district court agreed with appellants. .Ross,
Nevertheless, the district court refused to stay the proceedings or to compel arbitration. It reasoned that, because the ap-pellees had raised an antitrust claim concerning the validity of the arbitration clauses, a jury trial was necessary to determine the validity of the arbitration clauses prior to enforcement. Id. at *10.
Appellants then brought the present appeal, invoking Section 16 of the FAA, which grants jurisdiction to courts of appeals over interlocutory appeals from refusals to stay an action under 9 U.S.C. § 3 and from denials of petitions to compel arbitration under 9 U.S.C. § 4. 9 U.S.C. § 16(a)(l)-(2). Section 3 provides:
If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement ....
9 U.S.C. § 3 (emphasis added). Section 4 provides that “[a] party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court ... for an order directing that such arbitration proceed in the manner provided for in such agreement.” 9 U.S.C. § 4 (emphasis added).
In support of their motion to dismiss for lack of jurisdiction, appellees argue that because the obligation to arbitrate arises from principles of estoppel and because Sections 3 and 4 apply only to failures to arbitrate pursuant to a “written” agreement, Section 16 does not provide for appellate jurisdiction in the present matter.
We disagree. We have noted that “[a]r-bitration is strictly a matter of contract.” Thomson-CSF, S.A. v. Am. Arbitration Ass’n,
In the present matter, the district court held that appellants are entitled to the benefit of a written arbitration agreement because the claims .against them are “ ‘inextricably intertwined’ with the cardholder agreements.” Ross,
To hold otherwise would depart from the language and policies of the FAA and quite possibly lead to perverse and unnecessary complexities in cases involving arbitration agreements. Where a party is deemed bound by a written arbitration agreement because of principles of equitable estoppel, that written agreement alone creates, defines, and provides proee-dures — including the method for selecting the arbitrators — for implementing the arbitration obligation. Both the language of the FAA requiring a writing and all possible policy reasons underlying that requirement are thus satisfied in the present matter. In every relevant sense, therefore, appellants are appealing from the refusal to compel arbitration under a written arbitration agreement.
Moreover, a contrary ruling here would be difficult to contain. Because the requirement of a written arbitration agreement is pervasive in the FAA, see 9 U.S.C §§ 2-4; see also id. §§ 5, 9, 13, 16, appel-lees’ reasoning would not only deprive appellate courts of interlocutory jurisdiction over equitable estoppel cases but would drastically alter the application of the FAA to arbitration proceedings based on equitable estoppel. For example, district courts would seemingly have no authority to stay proceedings or compel arbitration pursuant to Sections 3 and 4 of the FAA where principles of equitable estoppel bind parties to arbitrate under an arbitration agreement, even though the arbitration agreement is written. See 9 U.S.C. § 3 .(court may stay suit “referable to arbitration under an agreement in writing ”) (emphasis added), id. § 4 (court may compel arbitration “under a written agreement for arbitration”) (emphasis added). Moreover, cases, such as the present matter, may involve signatories to arbitration agreements bound to arbitrate with other signatories to that agreement and with yet other parties under equitable estoppel. Were appellees’ viéw to prevail, parties seeking to delay arbitration or to introduce mischievous complexities that would be grounds for judicial appeals, would have
Finally, to hold the writing requirement unfulfilled would be contrary to the case-law in this and several other circuits, where courts have frequently stayed proceedings and compelled arbitration under the FAA on equitable estoppel grounds. See, e.g., JLM Industries, Inc. v. Stolt-Nielsen SA,
For the above reasons, we hold that when a district court finds that a signatory to a written arbitration agreement is equitably estopped from avoiding arbitration with a nonsignatory, the writing requirement of Section 16 of the FAA is met. Accordingly, the motion to dismiss is denied.
Notes
. In ruling on this motion, we make no determination as to whether the district court was correct in holding that appellants are entitled to arbitration via equitable estoppel — a determination that will only be made following full briefing and argument on appeal. This ruling touches only upon our jurisdiction under the FAA to hear such an appeal.
. To the extent cases in other circuits are contrary to our holding, see DSMC Inc. v. Convera Corp.,